ASPEN TRAILS RANCH, LLC v. Simmons

April 14 2010

DA 09-0358

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 79

ASPEN TRAILS RANCH, LLC,

Appellant,

v.

BARRY J. SIMMONS and PETE ELLIOT,
and HELENA CITY COMMISSION,

Appellees.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDV 2005-883
Honorable Jeffrey M. Sherlock, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Colleen M. Dowdall, Jane E. Cowley, Worden Thane P.C.,
Missoula, Montana

For Appellees:

Jack R. Tuholske, Tuholske Law Office, P.C., Missoula, Montana

Submitted on Briefs: February 10, 2010

Decided: April 14, 2010

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Aspen Trails, LLC (Aspen Trails), appeals from a decision of the First Judicial

District Court, Lewis and Clark County, voiding a preliminary subdivision plat which had

been approved by the Helena City Commission (Commission). For the reasons set forth

below, we affirm the District Court.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In August 2005, a developer named Richard Bowen (Bowen) filed an application

for the Aspen Trails subdivision before the Commission. The proposed subdivision was

to be located north of the city limits of Helena, Montana, and would contain

approximately 325 residential lots over 260 acres. The proposed subdivision was to be

adjacent to the Prickly Pear Creek, which flows through the Helena Valley into Lake

Helena and then on to the Missouri River. Aspen Trails proposed that the subdivision be

annexed to the city of Helena and be connected to Helena’s water and sewer systems.

¶3 In conjunction with the application, Aspen Trails submitted an environmental

assessment (EA) of the proposed subdivision prepared by Morrison-Maierle, Inc. The

main body of the EA is 53 pages in length and contains several appendices. The EA

includes legal and environmental descriptions of the proposed development, a community

impact assessment (covering issues such as water supply, sewage disposal, roads,

drainage, and land use), a summary of probable impacts and proposed mitigation

measures, and other issues concerning the proposed development.

¶4 Additionally, a report (Staff Report) on the proposed subdivision was prepared by

the City of Helena Planning Division. The Staff Report made findings of fact regarding

2
the subdivision’s impact on areas such as agriculture, local services, the natural

environment, wildlife and wildlife habitat, and public health and safety. The Staff Report

proposed 27 conditions in order to mitigate the potential for adverse impacts indentified

in its findings and recommended the approval of the preliminary plat subject to these

conditions.

¶5 On October 18, 2005, The Helena/Lewis and Clark County Consolidated Planning

Board (Planning Board) took public comment on the proposed development. The

Planning Board reviewed the EA and the Staff Report. On October 25, 2005, the

Planning Board voted to deny the application. The Planning Board determined that some

of the impacts from the development, such as those on agriculture, local services, and

public health and safety, could be mitigated. However, the Planning Board further

concluded that the development’s impacts on the natural environment, wildlife, and

wildlife habitat could not be mitigated and denied the application on this basis.

¶6 On November 21, 2005, the Commission held a public meeting to discuss the

proposed development and application of the preliminary plat. At that meeting

proponents and opponents gave public testimony. Appellee Pete Elliot (Elliot) spoke in

opposition to approval of the preliminary plat. Elliot is a resident of the Helena Valley

whose property is contiguous to the proposed subdivision. Some members of the

Commission expressed concern about the proposed subdivision with respect to flooding

and high groundwater in the area, but nonetheless voted to approve the preliminary plat.

The Commission issued findings of fact and attached 27 conditions to the approval of the

3
subdivision preliminary plat. The Commission determined that any detrimental impacts

resulting from the subdivision could be mitigated with appropriate measures.

¶7 On December 16, 2005, Elliot, and two additional plaintiffs named Donald

Zelenka and Barry J. Simmons1 (collectively Landowners) filed suit against the

Commission in District Court, challenging its decision to approve the preliminary plat. A

first amended complaint was filed on February 24, 2006. On April 17, 2006, the

Commission moved to dismiss the complaint for the Landowners’ lack of standing and

failure to state a claim for which relief could be granted.

¶8 On October 3, 2006, the District Court denied the motion to dismiss and held that

the Landowners did have standing to sue the Commission. The District Court noted that

Elliot was a contiguous landowner with respect to the proposed subdivision and was

permitted to appeal the decision of the Commission pursuant to § 76-3-625(3), MCA, of

the Montana Subdivision and Platting Act (MSPA). Additionally, the first amended

complaint alleged that the proposed subdivision would add significantly to traffic and

congestion on existing roads and that the installation of pipelines and lift stations may

have a significant adverse impact on existing neighborhoods. Furthermore, the complaint

alleged that the proposed subdivision would have substantial and significant impacts to

ground and surface water, as well as wildlife habitat. The amended complaint further

alleged that the proposed subdivision would irrevocably change the rural character of the

area. The District Court also took note of the fact that the first amended complaint

1
Simmons is a resident of the Helena Valley whose property is near the proposed subdivision.

4
alleged specific violations of the MSPA, the Helena Growth Policy, and Article IX,

Section 1 and Article II, Section 3 of the Montana Constitution.

¶9 At the conclusion of its order, the District Court observed that the first amended

complaint had seemingly failed to tie the injury complained of to any specific action

taken by the Commission. In this connection, Elliot had filed a supplemental affidavit

before the court, in which he specifically alleged that the proposed subdivision would,

among other things, adversely affect the enjoyment of his property, change the stream

channel of Prickly Pear Creek, potentially disturb the natural recharge of the aquifer,

adversely impact the quality of his water supply, and also have a long-term negative

effect on the value of this property. The District Court determined that the first amended

complaint, when coupled with the averments in the supplemental affidavit, sufficiently

tied together the action of the Commission with a complaint of harm. Thus, the District

Court authorized the plaintiffs to file a second amended complaint incorporating the

specific allegations of harm as set forth in the supplemental affidavit.

¶10 Simmons and Elliot filed a second amended complaint on October 20, 2006.

Ronald Zelenka was dropped from the suit. In this complaint, Landowners alleged that

neither the EA nor the Staff Report adequately addressed resulting impacts from the

proposed subdivision. Landowners claimed that the EA did not address resulting impacts

to water quality of the Prickly Pear Creek and Lake Helena watershed from the proposed

subdivision. The Landowners also claimed that the Staff Report did not adequately

address the environmental and community impacts arising from the subdivision on water

quality issues vis-à-vis the installation of collection systems and a proposed lift station.

5
The Landowners argued that the Commission’s findings of fact for conditional approval

did not adequately describe the potential negative impacts from the development, and that

the attached conditions did not adequately mitigate the resulting negative environmental

impacts, especially with regard to impacts on wildlife, water quality, and flooding.

¶11 The District Court held a one-day evidentiary hearing in this matter on December

22, 2008. The Landowners and the Commission presented testimony and evidence. The

Landowners claimed the preliminary plat should be voided based on the inadequacy of

the EA. Landowners argued that under the MSPA, the EA provided the only mechanism

for the public and the governing body to properly review the effects of a subdivision

before a preliminary plat is issued. Landowners contended the EA was inadequate in

several key respects. First, they observed that the subdivision was to be located in an

area of very shallow groundwater, adjacent to Prickly Pear Creek. The EA itself stated

that the project area has a high groundwater table, only 2 to 10 feet below the surface.

Landowners contended that the EA did not provide further information on groundwater

levels beyond this statement and did not provide adequate baseline information taken

from monitoring wells throughout the proposed subdivision in order to quantify the actual

groundwater depths, rates, directions of flow, and seasonal fluctuations in the water table.

Landowners’ expert, Chris Cerquone (Cerquone), testified that without this type of

baseline information the impacts to the groundwater could not be adequately evaluated

given the high water table and the size of the proposed development. Accordingly,

Landowners claimed the EA did not provide “available groundwater information” as

required under § 76-3-603(1)(a), MCA, and thus did not comply with the MSPA.

6
¶12 Additionally, Landowners asserted that the EA did not address impacts of surface

pollutants on the groundwater or Prickly Pear Creek itself. Landowners argued that the

EA did not account for impacts due to “nonpoint” sources of pollution, such as fertilizers,

pesticides, herbicides, and other household materials which would affect the groundwater

with the addition of the subdivision. Although the connection of the subdivision to city

of Helena sewer systems arguably had a lesser impact than the use of septic systems,

Landowners contended that the placement of sewer lines in either water or soil would

affect their leakage potential and should have been evaluated. Landowners argued the

EA failed to address these impacts, as required under §§ 76-3-603 and -608, MCA, and

that failure to do so rendered the EA inadequate in this regard as well.

¶13 Third, Landowners contended that the EA lacked adequate, site-specific

information about base flood elevation in the area, and did not contain a hydraulic

analysis to evaluate how the addition of new roads, new structures, the re-routing of

irrigation ditches, and filling wetlands, could affect the flooding potential of the area.

Finally, Landowners claimed that the EA was inadequate because it failed to address the

problem posed by “soil liquefaction”2 in the area of the proposed subdivision.

¶14 The Commission disputed these contentions, arguing that the EA adequately

addressed the impacts complained of by the plaintiffs, and that the conditions attached to

the approval of the subdivision properly mitigated any adverse effects from the

subdivision. For instance, regarding storm water runoff, the Commission’s conditional

2
Soil liquefaction occurs when water-saturated granular material is transformed from a solid
state to a liquid state through motion, most often times earthquakes.

7
approval required that infrastructure plans had to be submitted and reviewed prior to

approval. To address the issue of high groundwater, the subdivision had covenants which

restricted homes from having basements in high groundwater areas. With respect to

flooding, the findings in the conditional approval identified the 100 and 500-year

floodplains, and the subdivision plat itself did not place any lots within the 100-year

floodplain. The Commission further claimed that city building codes would mitigate the

impacts of locating homes within the 500-year floodplain. Finally, with respect to

impacts on wetlands, the Commission noted that the conditional approval required the

replacement of eliminated wetlands at a ratio of one-for-one.

¶15 On March 18, 2009, the District Court entered its findings of fact, conclusions of

law and order voiding the preliminary plat for Aspen Trails’ subdivision. Citing to Keily

Const., L.L.C. v. City of Red Lodge, 2002 MT 241, 312 Mont. 52, 57 P.3d 836, the

District Court noted that it would review the Commission’s decision under the “arbitrary

and capricious or unlawful” standard of review. Keily, ¶ 69. The District Court noted

that the MSPA required the Commission to consider the subdivision application, the

preliminary plat, the EA, public hearing, and **planning board recommendations.

Section 76-3-608(1), MCA. Section 76-3-603(1), MCA, requires the EA to contain

information including:

(a) a description of every body or stream of surface water that may
be affected by the proposed subdivision, together with available ground
water information, and a description of the topography, vegetation, and
wildlife use within the area of the proposed subdivision;
(b) a summary of the probable impacts of the proposed subdivision
based on the criteria described in 76-3-608 . . . .

8
The District Court, citing to § 76-3-608(3)(a), MCA, also stated that one of the primary

criteria to be reviewed was the impact of the subdivision on the natural environment.

¶16 Before turning to an analysis of the adequacy of the EA, the District Court

considered the appropriate standard under which to evaluate the EA. The District Court

adopted the Landowners’ recommendation that the Commission’s review of the EA be

evaluated under the “hard look” standard as discussed in Clark Fork Coalition v. Mont.

Dept. of Env. Qual., 2008 MT 407, 347 Mont. 197, 197 P.3d 482.

An agency must take a “hard look” at the environmental impacts of a given
project or proposal. Implicit in the requirement that an agency take a hard
look at the environmental consequences of its actions is the obligation to
make an adequate compilation of relevant information, to analyze it
reasonably, and to consider all pertinent data. Admittedly, court review of
an agency decision, including an environmental decision, is limited. Still,
while a court is not to substitute its judgment for that of the agency, the
agency must examine the relevant data and articulate a satisfactory
explanation for its action, including a rational connection between the facts
found and the choice made. In other words, the Court looks closely at
whether the agency has taken a hard look at the question presented. The
Court does not take a hard look itself but requires that the agency does so.
The Court focuses on the validity and appropriateness of the administrative
decision making process without intense scrutiny of the decision itself. In
this way, the Court examines the elements of the decision without
interfering with the administrative authority over the decision itself.

Clark Fork Coalition, ¶ 47 (citations omitted).

¶17 The District Court then considered whether the Commission took a “hard look” at

the EA submitted in conjunction with the preliminary plat. Turning to the adequacy of

baseline information regarding groundwater, the District Court noted that

§ 76-3-603(1)(a), MCA, requires “available groundwater information” be provided. The

EA only mentioned that the depth of groundwater was 2 to 10 feet below the surface, but

9
did not reference other available information such as a U.S.G.S. report on the

groundwater covering the project site. Furthermore, the District Court noted that there

had been other information about groundwater generated from test wells which had not

been presented or discussed in the EA. The District Court also observed that

Landowners’ expert Cerquone opined that the high groundwater in this area needed to be

studied in detail and that water depths should be monitored to ensure accurate

information in order to assess the impacts from the subdivision.

¶18 The District Court determined that the paucity of information in the EA regarding

groundwater information prevented the Commission from taking a “hard look” at impacts

on water quality. The District Court noted that water quality impacts were referenced in

the EA and that the restrictive covenants prohibited the construction of basements in

areas of high groundwater in order to mitigate this impact. Beyond that, no further

information on groundwater depth was provided. The District Court reasoned that

without knowing the specific depth of groundwater, it was plausible that sewer pipes

could be placed directly in groundwater, increasing the leakage potential and possible

contamination of Prickly Pear Creek. The EA, however, did not even address this issue

or present the Commission the opportunity to consider this impact.

¶19 The District Court also observed that the EA did not discuss the impacts of surface

pollutants on the groundwater or Prickly Pear Creek. The District Court agreed with the

Landowners’ contentions that potential impacts from the use of fertilizers, pesticides,

herbicides, and other deleterious products created by the addition of 325 homes in the

subdivision, should have been discussed. The District Court noted Cerquone’s testimony

10
that storm water retention ponds would not resolve this issue because the pollutants

would not bind to solid particles and settle out in the pond. The Commission’s expert

Mark Brook (Brook), a professional engineer and hydrologist with Morrison-Maierle,

Inc., disagreed with Cerquone’s assertion that these materials would be driven into the

groundwater. The District Court simply noted that given the high groundwater in this

area, impacts from these pollution sources should have been discussed in the EA.

¶20 Regarding the Landowners’ contentions that the EA lacked the requisite

information on base flood evaluations, the District Court noted that the EA did contain a

flood plain map derived from FEMA maps. While the Landowners had misgivings about

the reliability of FEMA-derived maps in this context, the District Court noted that the

Legislature had specifically provided that such maps create a rebuttable presumption of

reasonable hydrological certainty under § 76-5-202(3), MCA. Thus, the District Court

held the EA did contain adequate information about the base flood evaluations for the

proposed subdivision.

¶21 The District Court then considered whether the EA was required to have a

hydraulic analysis or other evaluation of flood impact from the infrastructure

improvements required for the subdivision. The District Court noted that the EA did deal

with the issue of flood hazard evaluations, and discussed the FEMA maps and the fact

that none of the proposed lots would be located within the 100-year floodplain. The EA

also noted that a reconstruction of one of the roads near the subdivision might affect the

flood potential of the area and recommended a hydraulic analysis of the proposed

redesign of the road. The District Court concluded the EA was adequate in this regard. It

11
noted that reliance on the FEMA floodplain map was appropriate. The District Court

further noted that the EA did address surface runoff with the installation of storm water

retention ponds, and that the retention ponds were not to discharge at rates greater than

the existing discharge from the site during a 100-year flood event. Accordingly, the

District Court rejected Landowners’ contentions that a more detailed hydraulic analysis,

flood evaluation, or storm water plan was required to make the EA adequate in this

regard.

¶22 Finally, the District Court turned to the adequacy of the EA on the issue of “soil

liquefaction.” The District Court noted that the issue was discussed in the EA and the EA

suggested a geotechnical evaluation be undertaken to address this issue in order to

generate recommended mitigation measures. The Commission made the geotechnical

report, and the incorporation of its recommendations into all roads and engineered

structures, a condition of approval. This condition would also require an evaluation of

the soil liquefaction issue on home construction. The District Court found the EA was

sufficient on this issue. It noted that the EA alerted the Commission to the soil

liquefaction issues and addressed this impact by requiring the adoption of measures from

the geotechnical report.

¶23 In sum, the District Court concluded the EA was adequate as to a base flood

elevation survey, the requirement of a hydraulic analysis, and the soil liquefaction issue.

The EA was inadequate, however, regarding issues related to probable impacts arising

from surface pollution entering the groundwater and/or Prickly Pear Creek, and did not

contain available groundwater information. For these reasons, the District Court

12
concluded that the approval of the preliminary plat was unlawful for failure to provide

available groundwater information, and arbitrary and capricious insofar as it failed to

consider surface pollution impacts resulting from the subdivision.

¶24 The Commission declined to challenge the District Court’s decision. Aspen

Trails, which had not previously been a named party in the proceedings, subsequently

sought leave to intervene and to alter or amend the judgment. The Landowners opposed

Aspen Trails’ intervention, arguing it was untimely. The District Court granted Aspen

Trails leave to intervene, but denied the motion to alter or amend. The District Court

analyzed the motion to intervene under Connell v. State Dept. of Soc. & Rehab. Servs.,

2003 MT 361, 319 Mont. 69, 81 P.3d 1279. The District Court agreed with Landowners’

contentions that it would be inequitable to allow Aspen Trails to intervene in order to

simply reopen issues which had already been litigated. However, it also concluded it

would be inequitable to foreclose Aspen Trails the right to appeal the District Court’s

decision after the Commission declined the opportunity to do so. The District Court

concluded that Aspen Trails’ motion to intervene was timely made after the Commission

decided not to appeal, and that its interests in the appeal were sufficiently substantial so

that it should have the opportunity to be adequately represented.

¶25 Aspen Trails now appeals from the decision of the District Court. The

Landowners cross-appeal from the District Court’s decision to allow Aspen Trails to

intervene in this matter. We state the issues on appeal as follows:

¶26 Issue One: Did the District Court abuse its discretion in allowing Aspen Trails to

intervene after trial?

13
¶27 Issue Two: Did the District Court err in concluding that the Landowners had

standing in this case?

¶28 Issue Three: Did the District Court commit reversible error when it voided the

preliminary plat?

STANDARD OF REVIEW

¶29 A district court’s ruling on a motion to intervene is reviewed for an abuse of

discretion. Grenfell v. Duffy, 198 Mont. 90, 95, 643 P.2d 1184, 1187 (1982). A district

court abuses its discretion when it acts arbitrarily, without the employment of

conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice.

Lee v. USAA Cas. Ins. Co., 2001 MT 59, ¶ 27, 304 Mont. 356, 22 P.3d 631.

¶30 A district court’s determination regarding standing presents a question of law

which we review for correctness. In re Charles M. Bair Family Trust, 2008 MT 144,

¶ 86, 343 Mont. 138, 183 P.3d 61.

¶31 We review a district court’s decision pursuant to § 76-3-625(2), MCA, of the

MSPA to determine whether the record establishes that the governing body acted

arbitrarily, capriciously, or unlawfully. Kiely Const., ¶ 69. As we recently explained in

Citizens for Responsible Development v. Bd. of Co. Commsrs. of Sanders Co., 2009 MT

182, 351 Mont. 40, 208 P.3d 876, this standard of review breaks down into two basic

parts. One component concerns whether the agency action could be held to be unlawful.

Citizens, ¶ 8 (citing North Fork Preservation Assn. v. Dept. of State Lands, 238 Mont.

451, 459, 778 P.2d 862, 867 (1989)). An agency action is unlawful when it fails to

comply with the requirements of applicable statutes. Citizens, ¶ 26. The second part of

14
the inquiry concerns whether the agency decision was arbitrary and capricious. Citizens,

¶ 8. A reversal under this standard of review “is not permitted ‘merely because the

record contains inconsistent evidence or evidence which might support a different result.

Rather, the decision being challenged must appear to be random, unreasonable, or

seemingly unmotivated, based on the existing record.’ ” Kiely Const., ¶ 69 (quoting Silva

v. City of Columbia Falls, 258 Mont. 329, 335, 852 P.2d 671, 675 (1993)).

DISCUSSION

¶32 Issue One: Did the District Court abuse its discretion in allowing Aspen Trails to
intervene after trial?

¶33 In their cross-appeal, Landowners contend the District Court abused its discretion

in allowing Aspen Trails to intervene after final judgment was entered. Landowners note

that M. R. Civ. P. 24(a) requires that a motion to intervene be timely. See Connell, ¶ 20.

Landowners argue Aspen Trails’ motion to intervene failed to meet this standard.

Landowners contend that Aspen Trails was aware of this litigation since early on in the

proceedings, and did not seek to intervene until June 2009, roughly two months after final

judgment was entered. Landowners argue that post-judgment intervention should be

allowed only in exceptional cases, and urges this Court to rely upon federal caselaw in

assessing whether Aspen Trails’ motion was timely. In this connection, Landowners

contend that Aspen Trails both knew about the pending litigation and was invited to

intervene by the Landowners, but refused to do so and claimed the dispute was only

between the Landowners and the Commission. Landowners further claim that Aspen

Trails specifically knew the substance of the EA would be a central issue as early as

15
January 2008. Since Aspen Trails had knowledge of the underlying issues, and waited

until post-trial proceedings to intervene, plaintiffs contend leave to intervene should have

been denied. Citing Connell, Grenfell, and League of United Latin Am. Citizens v.

Wilson, 131 F.3d 1297 (9th Cir. 1997), they posit that such post-trial interventions are

disfavored and routinely denied. Finally, Landowners argue the District Court failed to

adequately consider the resulting prejudice to them if leave to intervene was granted.

Specifically, Landowners note they have been required to expend more time and

resources to defend the judgment on appeal.

¶34 Aspen Trails asserts the District Court did not abuse its discretion in this instance.

Aspen Trails notes that the determination of timeliness is a discretionary function of the

District Court, and that the District Court acted within its discretion when it determined

intervention was timely. Aspen Trails asserts its intervention did not create any delay

because it was well within the time allowed for an appeal from the District Court. It also

argues its delay in intervening was reasonable because it only decided to intervene after

the Commission signaled that it would not pursue an appeal, and only did so in order to

protect its interests. Aspen Trails also argues that Landowners are not prejudiced,

because it is simply taking up an appeal which the Commission could have taken had it

chosen to do so. Additionally, Aspen Trails asserts that it has a right to intervene since

its interests in this matter are substantial and no longer adequately represented.

¶35 We conclude that the District Court did not abuse its discretion when it allowed

Aspen Trails to intervene after judgment was entered. We agree with Aspen Trails that

its intervention has not caused any delay in this matter, and that its interests are

16
substantial and no longer adequately represented since the Commission has declined to

appeal. We also agree that the Landowners cannot claim prejudice simply because they

are now required to defend the District Court’s decision on appeal. While it may be

inconvenient for the Landowners to have to defend their successful judgment on appeal,

we cannot say it has caused them prejudice to defend against Aspen Trails, as opposed to

the Commission. The District Court has the discretion to weigh all of these factors when

considering whether to grant or deny leave to intervene. Here, we cannot say that the

decision to grant leave was arbitrary, without the employment of conscientious judgment,

or exceeded the bounds of reason resulting in substantial injustice. Lee, ¶ 27. Thus, we

affirm the District Court on this issue.

¶36 Issue Two: Did the District Court err in concluding that the Landowners had
standing in this case?

¶37 Aspen Trails argues that neither Simmons nor Elliot had standing to pursue their

claims in District Court. “To establish standing to bring suit, the complaining party must

(1) clearly allege past, present, or threatened injury to a property right or a civil right, and

(2) allege an injury that is distinguishable from the injury to the public generally, though

the injury need not be exclusive to the complaining party.” Fleenor v. Darby Sch. Dist.,

2006 MT 31, ¶ 9, 331 Mont. 124, 128 P.3d 1048. Standing is a “threshold jurisdictional

question” especially in those cases where a statutory or constitutional violation is alleged

to have occurred. Fleenor, ¶ 7.

¶38 The MSPA provides a statutory basis for standing. Under § 76-3-625(2), MCA, a

party aggrieved by a decision of a governing body to approve, conditionally approve, or

17
deny a preliminary plat for a subdivision may appeal the decision to the district court. An

“aggrieved person” is one “who can demonstrate a specific personal and legal interest, as

distinguished from a general interest, who has been or is likely to be specially and

injuriously affected by the decision.” Section 76-3-625(4), MCA. An aggrieved party

who may challenge an agency decision includes “a landowner with a property boundary

contiguous to the proposed subdivision or a private landowner with property within the

county or municipality where the subdivision is proposed if that landowner can show a

likelihood of material injury to the landowner’s property or its value . . . .” Section

76-3-625(3)(b), MCA. Aspen Trails contends that neither Elliot nor Simmons have met

the standing requirements under the MSPA.

¶39 Aspen Trails concedes that Elliot is a contiguous landowner, but argues that he

lacks standing because he has not established that he is an “aggrieved person.” Aspen

Trails contends that Elliot has alleged only generalized concerns about the proposed

subdivision which are insufficient to confer standing. Elliot’s generalized concerns relate

to impacts on the water table, wetlands, wildlife habitat, increased pollution to Prickly

Pear Creek, and possible increased flooding. Aspen Trails contends that Simmons’

concerns are even more generalized, and limited to unquantified concerns about a

decrease in the value of this property due to placing tract housing in an area of the Helena

Valley which is now rural.

¶40 The District Court, relying on Clinton v. City of New York, 524 U.S. 417, 118

S. Ct. 2091 (1998), concluded that so long as one of the Landowners established

standing, the jurisdictional requirement of standing was satisfied for both Landowners.

18
Aspen Trails disputes this conclusion, arguing that both Landowners must establish

standing on their own, and cannot rely on the standing established by the other.

¶41 We conclude the District Court did not err in concluding that Elliot had standing to

challenge the Commission’s decision to approve the preliminary plat. It is undisputed

that Elliot is a contiguous landowner with respect to the proposed subdivision. Elliot

averred that the subdivision would affect the enjoyment of his property given that the

area of the subdivision was prone to flooding, and had the potential to change the stream

channel of the Prickly Pear Creek. Further, Elliot alleged that the dense development and

accompanying storm water run-off would potentially disturb natural recharge to the

aquifer taking place on agricultural land, and could adversely impact the quality of his

water supply. Elliot also alleged impacts to wildlife habitat and wetlands, increased

noise, traffic, and light pollution, and result in a decrease in the value of this property.

¶42 The allegations by Elliot were sufficient to confer standing upon him to challenge

the Commission’s decision. Elliot has alleged a specific injury to both his property rights

and rights as a citizen of this state. In Mont. Envtl. Information Centr. v. Dept. of Envtl.

Qual., 1999 MT 248, 296 Mont. 207, 988 P.2d 1236 (MEIC), for instance, a group of

plaintiffs sought to challenge the constitutionality of a statute which allowed certain

discharges of water from watering or monitoring well tests, contending that the discharge

was degrading the water quality in the Blackfoot River. The standing of the plaintiffs

was challenged. We held that allegations of arguably adverse impacts to the headwaters

of the Blackfoot River were sufficient to confer standing upon plaintiffs who fished,

recreated, and relied upon the Blackfoot River as a source of potable water. MEIC, ¶ 45.

19
We noted that whether the plaintiffs had demonstrated sufficient harm to ultimately

prevail on their claims was a “separate issue.” MEIC, ¶ 45. Elliot’s allegations of harm

are similar to those of the plaintiffs in MEIC. Whether Elliot could actually prevail on

his claims is a separate issue from whether he had standing to pursue them.

¶43 Furthermore, given Elliot’s proximity to the subdivision and his specific

averments, we conclude that his alleged injury is sufficiently distinguished from that of

the general public, and sufficient to confer standing. Elliot has shown that the impacts

from the subdivision have a more particular effect on him as a contiguous landowner than

on the public at large. See MEIC, ¶ 44 (discussing Missoula City-Co. Air Pollution

Control Bd. v. Bd. of Envtl. Review, 282 Mont. 255, 937 P.2d 463 (1997)). The fact that

these impacts could also affect other individuals does not defeat standing for Elliot

because the injury complained of need not be “exclusive to the litigant.” MEIC, ¶ 43.

¶44 We further note that in denying the Commission’s motion to dismiss, the District

Court stated that “[d]uring oral argument . . . the parties agreed that if one party has

standing, other parties may remain in the litigation without an inquiry into their

standing.” Because the Commission conceded this contention before the District Court,

we will not allow Aspen Trails to challenge this holding on appeal, given the fact that it

did not intervene in this matter until after judgment was entered.

¶45 As a practical matter, moreover, the District Court, Landowners, and the

Commission were correct in agreeing that if standing was established for one of the

Landowners the suit could go forward, because the Landowners both sought to void the

preliminary plat. In Clinton, the City of New York, health care providers, unions, and a

20
farmer’s cooperative in Idaho challenged the constitutionality of an act of Congress

giving the President of the United States “line item” veto power. Clinton, 524 U.S. at

425, 118 S. Ct. at 2097. The cases were consolidated before the United States Supreme

Court. The United States Supreme Court concluded that because the City of New York

and the Idaho farmers’ co-op had standing, the standing of the other parties did not merit

further inquiry. See Clinton, 524 U.S. at 431 n. 19, 118 S. Ct. at 2100 n. 19. Here,

likewise, the standing of any one of the Landowners would permit the suit to go forward.

Thus, the District Court did not err in denying Aspen Trails’ motion to dismiss and

concluding that the Landowners had standing to challenge the decision of the

Commission.

¶46 Issue Three: Did the District Court commit reversible error when it voided the
preliminary plat?

¶47 Finally, Aspen Trails challenges the District Court’s decision to void the

preliminary plat. First, it argues that the District Court impermissibly considered the

testimony of Cerquone and substituted its judgment for that of the Commission by

concluding that the Commission failed to consider the high groundwater in the area of the

subdivision and whether storm water run-off could pollute the Prickly Pear Creek. Aspen

Trails argues the Commission did consider these impacts on groundwater and mitigated

this impact by restricting the construction of houses with basements. Aspen Trails asserts

that surface pollution impacts were addressed and mitigated with the requirement of a

city-approved storm water drainage plan.

21
¶48 Aspen Trails further argues the District Court had no basis to determine that the

EA was inadequate and that the actions of the Commission were unlawful, arbitrary, and

capricious. Aspen Trails, relying on Citizens, suggests a less stringent standard of review

for an EA prepared under the MSPA than the standard utilized by the District Court. It

argues that an EA simply needs to provide information sufficient to allow a review of the

proposed subdivision pursuant to the MSPA and that the amount of information required

will vary from case to case. See Citizens, ¶ 19. Here, Aspen Trails argues the EA

satisfied this standard because it identified possible impacts from the subdivision and

proposed adequate mitigation of those impacts. Aspen Trail contends that adequate

information about pollution from storm water drainage and impacts to the Prickly Pear

Creek and groundwater was presented in the EA, and that the District Court erred in

determining the EA was inadequate.

¶49 Aspen Trails further argues the District Court erred when it voided the preliminary

plat. Aspen Trails contends it should be given an opportunity to present additional

information to the Commission if required, and offer measures to mitigate the impacts

instead of having the preliminary plat voided outright. For these reasons, Aspen Trails

argues the District Court’s decision should be reversed.

¶50 Landowners argue the District Court did not commit reversible error by voiding

the Commission’s approval of the preliminary plat. First, Landowners contend that under

Skyline Sportsmen’s Assn. v. Bd. of Land Commsrs., 286 Mont. 108, 951 P.2d 29 (1997),

the District Court properly considered the testimony of Cerquone at the evidentiary

hearing in order to evaluate the adequacy of the EA. The Landowners further argue the

22
District Court properly concluded that the EA did not comply with the requirements of

the MSPA, in that it failed to adequately describe the groundwater resources and failed to

provide required information about the probable impacts of the subdivision on

groundwater and surface water pollution. Landowners argue that no data about

groundwater depth was provided, even though the Commission was aware of extremely

shallow groundwater in the project area. Landowners also point out that the EA did not

include groundwater information from an available U.S.G.S. report even though

§ 76-3-603(1)(a), MCA, requires that all available information on groundwater be

included. Landowners further argue that the EA is inadequate because it does not contain

any information about nonpoint source water pollution impacts on the Prickly Pear

Creek, Lake Helena, or the shallow aquifer beneath the project site. In this connection,

Landowners argue that the restrictive covenants fail to include mandatory measures that

protect water quality.

¶51 The Landowners further contend that the District Court did not err in considering

whether the Commission took a “hard look” at the EA. Landowners assert this standard

was recently applied in Clark Fork Coalition, and that the District Court appropriately

relied upon it by determining that the Commission was required to take a “hard look” at

groundwater and pollution impacts resulting from the creation of over 300 new homes in

areas of shallow groundwater adjacent to the Prickly Pear Creek.

¶52 Finally, Landowners contend that the remedy provided by the District Court, the

voiding of the preliminary plat, was proper in this case under Citizens. Landowners

argue that the MSPA does not confer a “right” on Aspen Trails to go back to the

23
Commission and propose new mitigation measures. While Aspen Trails certainly has the

right to submit an application for another preliminary plat before the Commission, the

District Court’s decision to void the preliminary plat was not in error.

¶53 As an initial matter, we conclude that the District Court did not err when it

conducted an evidentiary hearing and received additional evidence concerning the

adequacy of the EA. As we stated in Skyline Sportsmen’s Assn.,

The standard of review of an informal administrative decision is whether
the decision was arbitrary, capricious, or unlawful. North Fork Pres. v.
Dept. of State Lands (1989), 238 Mont. 451, 458-59, 778 P.2d 862, 867. It
was appropriate for the District Court, in applying that standard, to accept
new evidence and not to limit its review to the administrative record. In a
proceeding to determine whether an agency decision was arbitrary,
capricious, or unlawful, unless the reviewing court looks beyond the record
to determine what matters the agency should have considered, it is
impossible for the court to determine whether the agency took into
consideration all relevant factors in reaching its decision. Asarco, Inc. v.
U.S.E.P.A. (9th Cir. 1980), 616 F.2d 1153, 1160.

Skyline Sportsmen’s Assn., 266 Mont. at 113, 951 P.2d at 32.

¶54 Second, we find no error in the District Court’s conclusion that the Commission

had to apply the “hard look” standard to the EA in this case. In Clark Fork Coalition,

this Court considered a district court’s review of an agency decision of the Montana

Department of Environmental Quality (DEQ), authorizing a mining company to

discharge water into the Clark Fork River. Clark Fork Coalition, ¶ 1. The Court said the

agency must take a hard look at the environmental impacts of a given project. Clark

Fork Coalition, ¶ 47. The district court’s review of the DEQ’s decision was whether it

was arbitrary and capricious, or unlawful, Clark Fork, ¶ 21, the same standard of review

applicable here. Thus, the “hard look” standard is to be utilized by the reviewing

24
government body—here, the Commission—and it is then up to the District Court to

determine whether that “hard look” was in fact taken.

¶55 The governing body considering an application for a preliminary plat must

consider “the impact on agriculture, agricultural water user facilities, local services, the

natural environment, wildlife and wildlife habitat, and public health and safety . . . .”

Section 76-3-608(3)(a), MCA; see also Citizens, ¶¶ 20-21. Section 76-3-603, MCA, sets

forth the contents for an EA under the MSPA. It reads as follows:

Contents of environmental assessment. When required, the
environmental assessment must accompany the subdivision application
and must include:
(1) for a major subdivision:
(a) a description of every body or stream of surface water that may
be affected by the proposed subdivision, together with available ground
water information, and a description of the topography, vegetation, and
wildlife use within the area of the proposed subdivision;
(b) a summary of the probable impacts of the proposed subdivision
based on the criteria described in 76-3-608; and
(c) a community impact report containing a statement of anticipated
needs of the proposed subdivision for local services, including education
and busing; roads and maintenance; water, sewage, and solid waste
facilities; and fire and police protection; and
(d) additional relevant and reasonable information related to the
applicable regulatory criteria adopted under 76-3-501 as may be required
by the governing body;
(2) except as provided in 76-3-609, for a minor subdivision, a
summary of the probable impacts of the proposed subdivision based on the
criteria described in 76-3-608.

¶56 We conclude that the District Court did not err in concluding that the

Commission’s approval of the preliminary plat was unlawful for failure to provide

available groundwater information as required under § 76-3-603(1)(a), MCA, and

arbitrary and capricious for failure to consider surface pollution impacts created by the

25
subdivision. The EA noted that ground water in the project area ranged from 2 to 10 feet;

however, a U.S.G.S. report on the shallow groundwater, as well as information from test

wells, was not presented in the EA. The Landowners’ expert Cerquone testified that the

high groundwater in the project area needed to be studied in detail. Indeed, the Planning

Board recommended rejection of the preliminary plat due to the high groundwater in the

area. As the District Court noted, the EA simply does not provide available information

on the high groundwater, and was inadequate with regards to potential impacts to both

the groundwater and the Prickly Pear Creek. For instance, without knowing the specific

depth of groundwater throughout the project site, Aspen Trails could conceivably place

sewer pipes directly in the groundwater. The Commission, in approving the preliminary

plat, had no way to evaluate whether or not this would occur, and what the resulting

impacts would be, since the EA did not provide all “available information” regarding the

groundwater. Accordingly, the District Court correctly concluded that the paucity of

information regarding groundwater information prevented the Commission from taking a

“hard look” at these impacts.

¶57 Similarly, we conclude the District Court did not err in determining that the

Commission’s decision to approve the preliminary plat without an assessment of impacts

on groundwater and the Prickly Pear Creek from surface pollution was arbitrary and

capricious. The EA did discuss the use of storm water ponds to control run-off.

However, as stated by the District Court,

Everyone agrees that the EA must summarize probable impacts to
the environment. All witnesses agreed that the construction of 300+ homes
in this subdivision will result in increases in herbicides, pesticides, and

26
 other household materials in the area. Given the extremely high
groundwater in this area, the nature of this possible pollution of the
groundwater and its possible tie-in with Prickly Pear Creek should at least
have been summarized and discussed in the EA.

¶58 Finally, we cannot conclude that the District Court’s decision to void the

preliminary plat was erroneous. In Citizens, we reversed a district court’s decision to

affirm a preliminary plat which had been approved by the Sanders County Board of

County Commissioners. We did so based on our determination that the board had acted

unlawfully in approving the plat. Citizens, ¶ 26. The District Court’s remedy in this case

is consistent with Citizens and the MSPA itself.

CONCLUSION

¶59 For the foregoing reasons, we affirm the District Court’s decision to void the

preliminary plat for the Aspen Trails subdivision.

/S/ PATRICIA O. COTTER

We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS

Justice Jim Rice, concurring.

¶60 I concur with Issues 1 and 2. I also concur with the Court’s ultimate determination

under Issue 3 to affirm the District Court, but for different reasons. I strongly believe the

District Court erred in the procedure it undertook to review the challenge to the plat, and

27
that this Court should not condone it, as it upends the environmental assessment (EA)

process—disrupting the right of agencies which use EAs to rely on them and the

deference we are to accord the administrative process. I thus concur with Aspen Trail’s

argument in this regard. I begin with a discussion of general administrative law

governing this issue, and conclude with this Court’s jurisprudence.

¶61 In the seminal case of Citizens to Preserve Overton Park, Inc. v. Volpe, the United

States Supreme Court held that a trial court’s review of an administrative agency “is to be

based on the full administrative record that was before the Secretary at the time he made

his decision.” 401 U.S. 402, 419-20, 91 S. Ct. 814, 825 (1971), overruled on unrelated

grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S. Ct. 980, 984 (1977). Because

review is to be limited to the administrative record, the Court reversed the decisions of

the lower circuit and district courts for relying on “litigation affidavits” presented by the

petitioners in the district court. The Supreme Court termed such evidence “post hoc

rationalizations” not part of the record serving as “the basis for review required by [the

Administrative Procedure Act].” Overton Park, 401 U.S. at 419, 91 S. Ct. at 825

(citations omitted). The Court acknowledged that lower courts may “require the

administrative officials who participated in the decision to give testimony explaining

their action,” but cautioned that “such inquiry into the mental processes of administrative

decisionmakers is usually to be avoided,” and certainly so “where there are

administrative findings.” Overton Park, 401 U.S. at 420, 91 S. Ct. at 825 (citations

omitted).

28
¶62 In Camp v. Pitts, the Supreme Court again confronted a challenge to an agency’s

decision by use of extra-administrative record evidence. 411 U.S. 138, 93 S. Ct. 1241

(1973). In applying the ‘arbitrary, capricious or unlawful’ standard of review, the Camp

Court unanimously held that “the focal point for judicial review should be the

administrative record already in existence, not some new record made initially in the

reviewing court.” Further, the Court explained that, in the event the administrative record

was so incomplete “as to frustrate effective judicial review, the remedy was not to hold a

de novo hearing but, as contemplated by Overton Park, to obtain from the agency, either

through affidavits or testimony, such additional explanation of the reasons for the agency

decision as may prove necessary.” Camp, 411 U.S. at 142-43, 93 S. Ct. at 1244. In Fla.

Power & Light Co. v. Lorion, the Court also held that “if the reviewing court simply

cannot evaluate the challenged agency action on the basis of the record before it, the

proper course, except in rare circumstances, is to remand to the agency for additional

investigation or explanation.” 470 U.S. 729, 744, 105 S. Ct. 1598, 1607 (1985)

(emphasis added).

¶63 The rules established in Overton Park, Camp and Lorion are recognized and well-

understood by federal circuit and district courts, far too many to list here. See e.g. Sierra

Club v. U.S. Army Corps of Engrs., 772 F.2d 1043, 1052-56 (2nd Cir. 1985); Cotton

Petroleum Corp. v. U.S. Dept. of Int., Bureau of Indian Affairs, 870 F.2d 1515, 1527-29

(10th Cir. 1989). Relying on Overton Park and Camp, the Ninth Circuit Court of

Appeals has held that the ‘predominant rule’ is that “agency action must be examined by

scrutinizing the administrative record at the time the agency made its decision.” Asarco,

29
Inc. v. EPA, 616 F.2d 1153, 1159 (9th Cir. 1980). Although Asarco—relied upon by this

Court in Skyline Sportsmen’s Assn. v. Bd. of Land Commrs., 286 Mont. 108, 113, 951

P.2d 29, 32 (1997), discussed below—recognized that the trial court could review

relevant evidence outside the administrative record in narrow circumstances, Asarco, 616

F.2d at 1160, it actually reversed the district court’s decision to hear and consider extra-

record evidence in that case as inappropriate. Asarco, 616 F.2d at 1161, 1163.

¶64 The Ninth Circuit has steadfastly applied Overton Park and Camp to hold “that

courts reviewing an agency decision are limited to the administrative record,” Lands

Council v. Powell, 395 F.3d 1019, 1029 (9th Cir. 2005) (citing Fla. Power & Light Co.,

470 U.S. at 743-44, 105 S. Ct. at 1606-07), while also narrowing the exceptions for trial

courts to admit extra-record evidence. The Lands Council Court stated that “if an

Agency’s administrative record is incomplete, we would expect litigants to seek to

supplement the record in the agency . . . .” Lands Council, 395 F.3d at 1030 n. 10. The

court noted the exceptions, which permitted district courts to admit extra-record

evidence, were to be “narrowly construed and applied.” Lands Council, 395 F.3d at 1030

(collecting cases); see Voyageurs Natl. Park Assn. v. Norton, 381 F.3d 759, 766 (8th Cir.

2004) (“[t]hese exceptions apply only under extraordinary circumstances;” emphasis

added). Lands Council explained that:

The scope of these exceptions permitted by our precedent is constrained, so
that the exception does not undermine the general rule. Were the [courts]
routinely or liberally to admit new evidence when reviewing agency
decisions, it would be obvious that the [courts] would be proceeding, in
effect, de novo rather than with the proper deference to agency processes,
expertise, and decision-making.

30
Lands Council, 395 F.3d at 1030.

¶65 While the above cases were applying the Administrative Procedure Act, 5 U.S.C.

§ 701 et seq., the logic of this approach is persuasive and has been mirrored in our own

jurisprudence, both in Montana Administrative Procedure Act (MAPA) and non-MAPA

cases. Under MAPA, administrative agency review is statutorily limited to the record.

Section 2-4-704(1), MCA (2007) (“The review must be conducted by the court without a

jury and must be confined to the record.”). In Clark Fork Coalition v. Mont. Dept. of

Envtl. Quality, we explained that our standards of review of agency decisions were

“generally narrow,” and that trial courts, pursuant to the statute, will “carefully review[]

the record and satisfy[] themselves that the agency has made a reasoned decision.” 2008

MT 407, ¶ 21, 347 Mont. 197, 197 P.3d 482 (quoting Friends of the Wild Swan v. DNRC,

2000 MT 209, ¶ 28, 301 Mont. 1, 6 P.3d 972; Marsh v. Or. Nat. Resources Council, 490

U.S. 360, 378, 109 S. Ct. 1851, 1861 (1989); emphasis added). Citing to Koch on

Administrative Law and Practice, we held that trial courts must “examine[] the elements

of the decision without interfering with the administrative authority over the decision

itself.” Clark Fork, ¶ 47 (citing Charles H. Koch, Jr., Administrative Law and Practice

vol. 3, § 10.5, 39-40 (2d ed., West 1997)).

¶66 We looked to MAPA principles for non-MAPA cases, like the case before us

today, when we reviewed the Flathead County Planning Board’s decision in North 93

Neighbors, Inc. v. Bd. of Co. Commrs. of Flathead Co., 2006 MT 132, 332 Mont. 327,

137 P.3d 557. In North Fork Preservation Assn. v. Dept. of State Lands, we examined

the standards of review for administrative agency decisions not subject to MAPA, and

31
adopted the following standard: “whether the record establishes that the agency acted

arbitrarily, capriciously, or unlawfully.” 238 Mont. 451, 456-59, 778 P.2d 862, 865-67

(1989) (emphasis added). We cited our decision in Langen v. Badlands Coop. State

Grazing Dist., in which we held that “[t]he appeal from the commission to the district

court is for the purpose merely of determining whether upon the evidence and the law the

action of the commission is based upon an error of law, or is wholly unsupported by the

evidence, or clearly arbitrary or capricious.” North Fork, 238 Mont. at 457, 778 P.2d at

866 (citing Langen, 125 Mont. 302, 308, 234 P.2d 467, 470 (1951)). We explained that

we look to the administrative record to review an agency’s decision to honor the

discretion given to the boards and commissions of this State, as authorized by the

legislature. North Fork, 238 Mont. at 457, 778 P.2d at 866 (citing Langen, 125 Mont. at

308, 234 P.2d at 470). We did so in Kiely Constr., L.L.C. v. City of Red Lodge, affirming

the district court’s decision to exclude the City Council meeting minutes, as well as the

testimony from the individual council members to explain their reasons for denying the

preliminary subdivision plat application. 2002 MT 241, ¶¶ 96-97, 312 Mont. 52, 57 P.3d

836. We reasoned that the evidence was properly excluded because it “would constitute

‘post-decision’ statements, which were not properly part of the record.” Kiely, ¶ 97

(emphasis added); see also Citizens for Responsible Dev. v. Bd. of Co. Commrs. of

Sanders Co., 2009 MT 182, ¶¶ 26-27, 351 Mont. 40, 208 P.3d 876 (reversing the district

court’s decision approving a preliminary plat based upon a review of the record).1

1
If there can be any lingering doubt about the wisdom or correctness of the rule, commentators
are unanimous in stating the general principle that “a court can engage in judicial review of an

32
¶67 The judicial function of reviewing administrative decisions by record review is

tied to the limited scope of the ‘arbitrary, capricious or unlawful’ standard of review.

This standard “communicates the least judicial role, short of unreviewability,” and

suggests a “restrained critical mood or a high tolerance for the risk of error.” Charles H.

Koch, Jr., Administrative Law and Practice vol. 3, § 10.4[1], 29 (2d ed., West 1997)

(emphasis in original). Thus, “[e]xcept in a de novo review proceeding in which the

court may take new testimony, review of agency action is limited to the record compiled

by the agency.” Stein, Mitchell & Mezines, Administrative Law vol. 5, § 43.02[7], 43-

103 (LexisNexis 2007).

¶68 The District Court’s approach was an unfortunate departure from these bedrock

principles. The danger in this approach is that it rewards gamesmanship in the

administrative process, here of subdivision plat approval. Landowners succeeded in

ambushing Aspen Trails and the Commission by the use of extra-record evidence. Rather

than participating in the agency process and providing their concerns about surface and

agency action based only on consideration of the record amassed at the agency” as a sound
principle of administrative law. Richard J. Pierce, Jr., Administrative Law Treatise vol. II,
§ 11.6, 1047-54 (Wolters Kluwer Law & Business 2010); see 73A C.J.S. Public Administrative
Law and Procedure § 346 (2004) (recognizing that “a court reviewing administrative action is
limited to the record”). Koch, whom we cited for authority in Clark Fork, ¶ 47, states: “[i]t is
black letter law that, except in the rare case, review in [the trial court] must be based on the
record before the agency and hence a reviewing court may not go outside the administrative
record.” Charles H. Koch, Jr., Administrative Law and Practice vol. 2, § 8.27, 509 (2d ed., West
1997) (collecting cases); see Charles H. Koch, Jr., Administrative Law and Practice vol. 3,
§ 10.4[2], 35-36 (2d ed., West 1997) (“the court scrutinizes that body of information before the
agency at the time it made the decision [and] Courts are not permitted to consider evidence
outside that ‘record;’” collecting cases); see also 2 Am. Jur. 2d Administrative Law § 545 (2004)
(“judicial review of an administrative agency decision is limited to the administrative record [and
the] court is restricted to the record made before the administrative agency . . . ;” collecting
cases).

33
water pollution information to the Commission, Landowners opted to wait and fault the

Commission before the District Court with extra-record evidence. Landowners’ new

expert testified in the District Court, offering information not presented to the

Commission. The record demonstrates that the de novo hearing before the District Court

was a battle of new scientific testimony over the adequacy and appropriateness of the EA.

The District Court relied heavily on the testimony of the Landowners’ expert to evaluate

the Commission’s decision, stating “Plaintiff’s expert Chris Cerquone has a master of

science degree in environmental studies[;] [h]e suggested monitoring wells throughout

the property . . . . Cerquone felt that groundwater depth and flow information is critical

to understand the potential impacts to groundwater and potential groundwater

contamination of Prickly Pear Creek.” Or. at 5-6. The District Court’s approach allowed

itself, and ultimately this Court, to be asked to act as scientific experts, judging and

weighing the credibility and accuracy of new competing scientific testimony regarding

the environmental impacts of subdivision plat construction. See Lands Council, 537 F.3d

at 988. That is not the proper role for the District Court, or this Court.

¶69 The Court quietly approves the District Court’s approach by citation to Skyline, a

decision which failed to critically analyze the issue as well as it should have. As noted

above, the Asarco case in which it relied was narrowly written, and the result in that case

was a reversal of the district court’s taking of new evidence. Asarco, 616 F.2d at 1161,

1163. Indeed, the commentaries treat Skyline as the exception to the general rule. See 2

Am. Jur. 2d Administrative Law § 545 n. 12 (2004); 73A C.J.S. Public Administrative

Law and Procedure § 346 n. 6 (noting only Skyline as authority for taking new evidence

34
when reviewing under an arbitrary, capricious or unlawful standard). I agree with Judge

Buyske’s comments in Skyline that “the path the majority chose to take . . . runs too

broadly through a factual analysis and invites future litigants to view district court

proceedings as a means to do what should have been done at the administrative agency

level—develop the record.” Skyline, 286 Mont. at 116-17, 951 P.2d at 34 (Buyske, J.,

dissenting).

¶70 I believe the District Court reached the correct conclusion, but believe the

conclusion could have been well-reached by properly reviewing the administrative

record. Because I agree that the Commission failed to consider the environmental

impacts related to surface pollution and possible groundwater contamination, in violation

of statutory requirements, I concur with the Court and would affirm.

/S/ JIM RICE

Justice James C. Nelson specially concurs.

¶71 I specially concur in the Court’s Opinion, although I also agree with Landowners’

argument, on brief, that Aspen Trails’ motion to intervene after judgment was untimely.

Read together, our cases hold that post-judgment motions to intervene are generally

disfavored and that once the litigation has commenced and the potential intervenor has

had notice and the opportunity to move to intervene, but fails to do so, then intervention

after the litigation has concluded and judgment entered is untimely and should be denied.

35
See Connell v. Dept. of Social and Rehab. Serv., 2003 MT 361, 319 Mont. 69, 81 P.3d

1279, and the cases collected and discussed therein.

¶72 Here, on the basis of our well-established jurisprudence, the trial court could have

and, in my view, should have, denied Aspen Trails’ untimely motion to intervene. In

doing so, the court would have saved the Landowners the time, trouble and expense of

defending this appeal. I also agree with Justice Rice’s discussion on the District Court

taking new evidence.

¶73 That said, however, I concur in the ultimate result reached by the Court in this

case.

/S/ JAMES C. NELSON

Justice W. William Leaphart, dissenting.

¶74 I dissent. In my view, the District Court erred in granting Aspen Trail’s post-

judgment motion to intervene under M. R. Civ. P. 24.

¶75 Although there is nothing in Rule 24 that precludes post-judgment intervention,

such motions are not favored. In re C.C.L.B., 2001 MT 66, ¶ 24, 305 Mont. 22, 30, 22

P.3d 646, 651. “[T]here is ‘considerable reluctance on the part of courts to allow

intervention after the action has gone to judgment and a strong showing will be required

of the applicant. Motions for intervention after judgment ordinarily fail to meet this

exacting standard and are denied.’” St. Charles Tower, Inc. v. County of Franklin, 2010

WL 743594 (E.D. Mo. Feb. 25, 2010) (citing Hillside Enter., Inc. v. Carlisle Corp., 944

36
F. Supp. 793, 798 (E.D. Mo. 1996)); Charles Alan Wright, Arthur Miller & Mary Kay

Kane, Federal Practice and Procedure vol. 7A § 1916.

¶76 This Court has looked to four factors in evaluating the timeliness of a motion to

intervene: (1) the length of time the intervenor knew or should have known of its interest

in the case before moving to intervene; (2) the prejudice to the original parties, if

intervention is granted, resulting from the intervenor’s delay in making its application to

intervene; (3) the prejudice to the intervenor if the motion is denied; and (4) any unusual

circumstances mitigating for or against a determination that the application is timely. In

re C.C.L.B. at ¶ 24. Here, where Aspen Trails knew of the litigation during the formative

stages, and yet waited until after judgment was entered to seek intervention, it has failed

under the first factor. When advised early on of the prospect of litigation, Aspen Trails

assumed the position that the dispute was between Plaintiffs and the City. Aspen Trails

knew before trial that its Environmental Assessment was going to be the subject of the

trial and that its preliminary plat might be voided. Despite being on notice that its

interests were at stake, Aspen Trails did nothing. It was only after defense of the

litigation had been conveniently financed by taxpayer money and the City Commission

decided not to appeal the adverse judgment that Aspen Trails determined that it actually

had an interest in the outcome.

¶77 Given my view that the District Court abused its discretion in allowing Aspen

Trails to intervene as an appellant, I would not reach the merits of the appeal.

/S/ W. WILLIAM LEAPHART

37